Is it fair to force a coach out because of poor team performance?

9 May 2018

Successful sports coaches have a wonderful job, but woe betide the losing coach. Just look at Silver Ferns coach, Janine Southby. For the first time ever, the Silver Ferns returned from the Commonwealth Games without a medal.

After the loss to Jamaica at the Commonwealth Games, captain Katrina Grant damningly said the team hadn't had the right direction over the last few months. South African shooter Lenize Potgieter poured petrol on the fire when she said she was very confused about decisions that were made by the Silver Ferns during the games.

The Silver Ferns have historically instilled fear in their opponents. But England captain Ama Agbeze says the more they beat the Silver Ferns, the less scared they are.

Former Silver Fern Jenny-May Clarkson says it is untenable for Southby to keep her job.

Although Southby still has her job as coach, rumours are flying that it is only a matter of time. Criticism is widespread and the expectation is that Southby will fall on her sword and resign, whether or not she is really to blame for the Silver Ferns' performance.

From the outside, the way the netball world has turned on Southby certainly looks akin to mobbing. The Employment Court has decided mobbing is a ground for a personal grievance. Mobbing includes ganging up on or targeting an employee and may include continuous malevolent action to harm, control or force another person out of the workplace.

Elgin Edwards was dismissed as principal at the Bay of Islands College and argued that he had been driven out by mobbing. Edwards pointed to teachers deciding not to follow workplace changes he directed, generally undermining his position as principal, and repeatedly bringing dubious or trivial complaints which contributed to the employer's loss of trust and confidence in him.

The Employment Court found that mobbing did not lead to Edwards' dismissal. However as no serious misconduct was established to justify dismissing Edwards, he won his case and was awarded compensation.

Arsene Wenger has been the manager of Arsenal Football Club for 22 years. He is a leading figure in the sporting world but has finally "fallen on his sword" as a result of considerable opposition. Over the years Arsenal has fallen from the top of the Premier League and, despite three FA Cup trophies in the past five years, there was a highly publicised campaign to remove Wenger.

"Wenger Out" signs appeared at various events throughout the world – at a Coldplay concert in Bangkok, at a cricket match in South Africa and even at an address by Pope Francis at the Vatican. Eventually Wenger announced his resignation.

Pressure on sports people to resign is not limited to poor performance. Readers will have seen that the Australian cricket coach, Darren Lehmann, resigned despite being cleared of any wrongdoing following the Australian cricket ball tampering scandal.

It seems to be accepted in our culture that a coach is to blame when the team fails in any way and they should fall on their sword. This is a cultural or political expectation and not a legal obligation, certainly in New Zealand. The legality of this expectation was recently considered by the Employment Relations Authority in Auckland.

Brian Shelley was the coach of Waitakere United Football Club but was sacked after only three games as coach because his team failed to perform. The club's position was that it had expected Shelley to resign because of the "football tradition" of coaches "falling on their swords" if their teams performed badly.

The authority found that Shelley was an employee and no different from anybody else.

Employees aren't expected to fall on their sword for a poor outcome. Shelley had no prior warning his employment was at risk and he was given no chance to improve. The authority noted that a performance process could be tailored to deal with employment in high-performance sports.

Whilst legally both the school principal and the football coach won their cases, they didn't get their jobs back. It is open to wronged employees to seek reinstatement to their previous jobs. However, when the team you're coaching or the teachers at your school are totally against you, it is very unlikely the court will put you back in that workplace. Realistically, doing so would be impracticable for all parties. It usually becomes a question of fair compensation instead.

Chief executives falling out with their boards are in much the same position. Sometimes they have a clause in their contract stating that where the board no longer has trust and confidence in them, perhaps on reasonable grounds, the board can terminate the contract with notice and the payment of an agreed sum. These clauses are of uncertain legality, but in practice they seem to work.

Disputes regarding chief executives seldom come before the courts and are usually resolved quietly.

Where pure employment law collides with a breakdown in confidence in an employee, sometimes it is resolved by a justified dismissal following a proper process. Often it is resolved by the exchange of a sum of money. It is hard to force people to continue an employment relationship when all those around have lost confidence in them. It seems that in the sporting world, as in much of life, nothing succeeds as much as success.

Cullen - The Employment Law Firm is one of only eleven law firms in New Zealand approved to provide employment law services to Government and the public sector.